If Google Is A ‘Bad’ Monopoly, What Should Be Done?

Samuel R. Miller, Esq.

Samuel R. Miller serves as an Independent Arbitrator and Mediator in complex commercial and intellectual property litigation. In over 40 years of practice, Mr. Miller has represented both plaintiffs and defendants in a wide range of complex cases, including antitrust, unfair competition, intellectual property, fraud, securities and derivative litigation, escrow services and title insurance claims, real estate-related litigation, banking and financial services litigation, employment litigation, and contract disputes. Mr. Miller has considerable trial experience, including civil and criminal jury trials, bench trials, arbitrations, and administrative hearings.

Google Inc. is currently subject to antitrust investigations by state attorneys general in the United States, as well as antitrust authorities in the European Union. Google and its allies have mounted a vigorous public defense, arguing that Google’s activity should be immune from antitrust scrutiny or that imposing a remedy on Google would transform antitrust enforcers into some kind of undesirable “software regulatory agency,” which would threaten innovation in the Internet.

These arguments are reminiscent of the claims made 20 years ago that antitrust analysis was too outdated to apply to high-tech industries. That argument was rejected then, and it should be rejected now. Exclusionary conduct by a dominant firm can distort fair competition in high-tech markets, just as in more traditional markets. Antitrust remedies can, and should, be imposed to make sure that a dominant company does not improperly keep rivals out of its markets or improperly strengthen its dominant position, to the detriment of consumers and innovation.

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